The document discusses the Necessary and Proper Clause of the U.S. Constitution and several Supreme Court cases that have interpreted the scope of congressional power under this clause. It provides background on McCulloch v. Maryland, which established that Congress can pass any laws that are convenient or useful for executing its enumerated powers. Later cases like United States v. Comstock and Gonzalez v. Raich further expanded Congress's authority, finding that laws need only be rationally related to or able to substantially affect interstate commerce to be considered "necessary and proper." The document analyzes how these rulings have contributed to an increasing liberal interpretation of congressional power over time.

1. U.S. Constitutional Law Page 1
Legislative Powers
U.S. Constitutional Law
Congressional Power: The Necessary and Proper Clause
As always, red text indicates words you should know,
blue text takes your to external (background) resources

2. U.S. Constitutional Law Page 2
Legislative Powers
Goals of This Lecture
Continue to see how liberal interpretations of express
powers have increased power of federal government.
Specifically, see how the Court has interpreted the
words “necessary and proper” & why it’s called “the
elastic clause.”
See how this has affected Legislative Power.

3. U.S. Constitutional Law Page 3
Legislative Powers
Limited Federal Power
“All legislative powers
herein granted shall be
vested in a Congress . . .
.” Article I; Sec. 1
Plain English →
Congress limited to
express powers in the
Constitution.
“The powers not
delegated to the United
States by the
Constitution, nor
prohibited by it to the
States, are reserved to
the States . . . .” Tenth
Amendment
Plain English → States
may act unless the
Constitution prohibits the
action.

4. U.S. Constitutional Law Page 4
Legislative Powers
Necessary & Proper Clause
[The Congress shall have the Power] To make all
Laws which shall be necessary and propernecessary and proper for carrying
into Execution the foregoing Powers [those listed in
the Constitution], and all other Powers vested by this
Constitution in the Government of the United States,
or in any Department thereof.
- Article I, Section 8, cl 18

5. U.S. Constitutional Law Page 5
Legislative Powers
Factual Background of McCulloch
The Bank of the United States in Philadelphia. Alexander Hamilton argued
that the Constitution's implied powers authorized its creation.

6. U.S. Constitutional Law Page 6
Legislative Powers
Facts & Question Presented
Attorneys for McCulloch (Daniel Webster, left) and Maryland (Luther Martin,
right) in McCullough vs Maryland
1) Does Congress have the authority to create the Bank?
2) Is the state tax on the bank constitutional?
FACTS: Congress creates a national bank. States oppose
this. Maryland tries to tax the national bank. National bank
refuses to pay the tax.

7. U.S. Constitutional Law Page 7
Legislative Powers
Location of Clause is Decisive
Art I, Sec 8
Sets forth powers that
Congress has.
Chief Justice Marshall
says the Necessary and
Proper Clause is placed
here to expand powers.
Art I, Sec 9
Contains a list of things
Congress cannot due.
Places limits on
Congress.
Marshall says if intent
was limited power, then
Necessary & Proper
Clause would have been
placed here.

8. U.S. Constitutional Law Page 8
Legislative Powers
Constitutionality of the Law
Congress may choose any means, not prohibited by
the Constitution, to carry out its express authority.
Necessary means useful or desirable, not indispensable
or essential.
the “provision is made in a constitution, intended to
endure for ages to come, and consequently, to be
adapted to the various crises of human affairs.”
This does not equate to limitless authority.
Must further enumerated powerenumerated power
Must not violate the Constitution.

9. U.S. Constitutional Law Page 9
Legislative Powers
The Necessary and
Proper Clause in Practice
U.S. vs Gettysburg Elec. Ry. Co. (1896) Congress
passes law creating Gettysburg National Military Park,
private property must be confiscated (Enteignung) .
ISSUE - Does the Congress have the power to
confiscate land?
Expressly, No.
BUT: “Any act of congress which plainly and directly tends
to enhance the respect and love of the citizen for the
institutions of his country, and to quicken and strengthen
his motives to defend them” furthers the express power to
create military, defend the country and declare war.”

10. U.S. Constitutional Law Page 10
Legislative Powers
United States v. Comstock
Federal → “sexually
dangerous federal
prisoners” may be
placed in mental
institution (psychiatrische
Klinik) after serving prison
term.
ISSUE – does this fall
within one of Congress’s
express powers.

11. U.S. Constitutional Law Page 11
Legislative Powers
United States v. Comstock
HOLDING: Congress may pass laws that are
“rationally related to the implementation of a
constitutionally enumerated power.”
Enumerated power here = Commerce Clause.
Crimes & Imprisonment that “substantially affects”
commerce.
Imprisonment includes mental health care.
DISSENT: dangerous sex crimes involve non-
economic activity, so Commerce Clause cannot be
used.

12. U.S. Constitutional Law Page 12
Legislative Powers
Interplay Between the Clause
Law that is “necessary
and proper” must
advance an enumerated
power.
Liberal interpretationLiberal interpretation of
Commerce Clause =
easier to find something
as an “enumerated
power.”
Once enumerated power
is identified, easier to
use Necessary and
Proper Clause

13. U.S. Constitutional Law Page 13
Legislative Powers
Gonzalez v. Raich
Facts:
Federal law = illegal to possess, grow or distribute
marijuana.
California law = legal to possess and/or grow marijuana
for medical purposes.
Dr. gave Raich prescription to grow and use.
Federal agents raided Raich’s home and destroyed her
plants.
Claiming these plants violated federal law.

14. U.S. Constitutional Law Page 14
Legislative Powers
Gonzalez v. Raich
Questions for consideration:
On its face law is a valid exercise of legislative power
under the commerce clause.
BUT – can this law be applied to individuals who are
acting legally under state law?
Does the commerce clause allow this law to be applied to
individuals in this manner?
Is this a conflict between state and federal law?
NOTE – we will address this question in the Federalism
lecture.

15. U.S. Constitutional Law Page 15
Legislative Powers
Gonzalez v. Raich
Majority Opinion
Commerce Clause → Congress can regulate this
individual, local and arguably non-economic behavior.
Five Justices rely on Wickard
Accumulated effect principle → “class of activity” (growing
and consuming drugs) and large number of people doing
this = “substantial effect on interstate commerce” (Lopez).
Justice Scalia concurs
Congress has power to regulate pot under commerce
clause
It is “necessary and proper” to apply this law here.

16. U.S. Constitutional Law Page 16
Legislative Powers
Understanding Raich
Seven Justices act consistently:
Four apply Commerce Clause broadly (Lopez
dissenters) and three narrowly (Lopez majority)
Two Justices narrowly applied Commerce Clause in
Lopez but broadly here. Why?
Answer – overall scheme of controlling illegal drugs
(economic activity) would be harmed if the law could not
be enforced against these individuals.